Legal challenge stops work on Burnt Mtn. at Snowmass

SNOWMASS – Aspen Skiing Co.’s plan to add skiing on 230 acres of Burnt Mountain at Snowmass ski area this winter is being challenged by an environmental organization.

The Ark Initiative filed a lawsuit Sept. 5 contending that the U.S. Forest Service had unlawfully granted Skico permission to cut trees in what it maintains is an inventoried roadless area with special protections. The Ark Initiative informed the Forest Service that it intended to seek a temporary restraining order blocking Skico’s tree cutting on Burnt Mountain.

Skico’s trails crew started removing dead and living trees during the last week of August after getting approval from the White River National Forest supervisor’s office. The plan was to link pastures and open areas by thinning trees from the top of Burnt Mountain to the base.

Forest Supervisor Scott Fitzwilliams did not grant approval for Skico to thin trees along an old road that provides egress from lower Burnt Mountain to the Two Creeks section of Snowmass. Fitzwilliams said the work on that egress route, known as the Gene Taylor Traverse, required more review by the agency.

This latest court battle also has stopped Skico’s work higher on the mountain, at least temporarily.

“At the government’s request, the company has agreed not to cut any more trees until at least September 28, 2012 to give the Court an opportunity to consider a motion for a preliminary injunction, and, in any event, not until the government has provided Plaintiffs with seven days notice of resumption of tree cutting activities,” said a motion for a preliminary injunction by the Ark Initiative. “Those activities, when resumed, will cause irreparable harm to Plaintiffs as the cutting of hundreds of trees to facilitate commercial ski runs will permanently impair Plaintiffs’ ability to use and enjoy the Burnt Mountain parcel in its roadless state and will forever eliminate the ability of this parcel to be considered for wilderness eligibility.”

The Ark Initiative wants a court hearing as soon as possible on its request for an injunction blocking Forest Service approval of Skico’s plan. Skico filed a request Tuesday to intervene in the case, though it’s not listed as a defendant. Its motion said its interests are at stake because the Ark Initiative wants to block authorizations granted to Skico. The head of the Forest Service is the defendant in the case.

The Ark Initiative, based in Pinedale, Wyo., and its executive director, Donald Duerr, contend that the Forest Service erroneously omitted between 600 and 1,000 acres of Burnt Mountain from the inventoried roadless area. An adjacent 1,712-acre portion of Burnt Mountain made the inventory as roadless.

In 2006, the Forest Service first granted approval to Skico to cut trees on the disputed lands, the lawsuit said. The Ark Initiative sued, but a court ruled in the Forest Service’s favor, and the issue was upheld on appeal.

The Ark Initiative went through the administrative process of the Forest Service to object to the alleged omission of lands from roadless designation. Fitzwilliams denied the Ark Initiative’s protests regarding removal of trees on the 230 acres.

The Ark Initiative has responded with this latest lawsuit in U.S. District Court in the District of Columbia. The Ark Initiative wants a judge to declare that the Forest Service violated the federal Administrative Procedure Act for failing to rule in its favor in the administrative action, it wants a greater explanation from the Forest Service for that administrative denial, and it wants Skico tree cutting stopped preliminarily and permanently unless the Forest Service voluntarily prohibits the tree cutting or explains why it is legally permissible.